Bernard v. Lovett

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, DC-10721-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 29, 2007

Before Judges Cuff and Lintner.

Plaintiff, Stanley Bernard, filed a pro se Special Civil Part complaint seeking damages against defendants William and Frances Lovett purportedly*fn1 for false imprisonment stemming from an incident occurring on Sunday morning, May 15, 2005. A trial was held on June 15, 2006. During the trial, without objection from plaintiff, the judge dismissed plaintiff's complaint against William Lovett.*fn2 On June 15, 2006, the judge entered judgment in favor of plaintiff in the amount of $11,230, finding defendant liable for acts constituting malicious prosecution. Defendant appeals and we affirm in part, reverse in part, and remand for correction of the damage judgment.

At the beginning of the trial, the judge dismissed all claims of false arrest after plaintiff conceded, in response to the judge's question, that he was not asserting that the police acted without probable cause or that he was placed under arrest by either of the named defendants. He then gave the following account of the incident. Plaintiff was in the process of using a machete to trim the grass around the hedge separating his residence from defendant's when defendant pulled out of her driveway, went down the street, and returned within two minutes. She exited her vehicle, walked up to plaintiff and his wife, who was standing nearby, and accused him of cutting a portion of her hedge. Plaintiff responded by saying, "you got someone to marry you, you shouldn't be that angry." Plaintiff went back to attending to his lawn. Defendant left and, unbeknownst to plaintiff, called 911 and advised the police that plaintiff threatened her with the machete. Shortly thereafter, the police arrived, and placed plaintiff under arrest.

Plaintiff spent three days in jail, was released upon posting $500 bail,*fn3 and retained an attorney. Eventually, the charges were dismissed because defendant failed to appear in municipal court despite being subpoenaed.*fn4 According to plaintiff, there had been a long-standing dispute over the property line between the two houses, causing him to obtain a survey, which indicated a significant portion of the hedge was within his property line.

Plaintiff testified that he paid his counsel $3500 in addition to the bail, lost six days from his self-employed interior remodeling business, from which he earns $50,000 per year. He also testified that while he was in jail he slept on the floor, did not eat because he is a vegetarian, and was mentally stressed because he was worried what would happen to his wife and children if he, as "the breadwinner," was found to have committed terroristic threats as accused. Plaintiff's wife, Debra, confirmed his version of the incident.

Defendant testified that she approached plaintiff because she believed that he was cutting her hedge. He threatened her, waving the machete, stating, "I'll cut your ugly cunt face for you, that's what I'll do for you . . . ." Defendant claimed that plaintiff chased her and she ran to her truck where she called the police on her cell phone. However, she later stated that she walked to her vehicle and did not scream or cry out for help, although her husband was home, or attempt to go into her house. Although she claimed that her seventeen-year-old granddaughter witnessed the incident, the granddaughter was not brought to court. Defendant's husband, William, was asleep in the house at the time. However, when William was asked whether he believed that plaintiff would wave a machete at defendant, he stated, "I don't know [plaintiff] personally, only as a neighbor . . . but no, I don't think he would . . . ." Defendant also testified that she was never notified to appear at plaintiff's trial.

The judge found plaintiff's and Debra's testimony credible. She also accepted William's testimony. She discredited defendant's testimony finding that "there never was a threat by the plaintiff against the defendant with a machete or with anything else," and "defendant was extremely upset about what was going on with the hedge and appears to have called the police chiefly as a matter of retaliation." She found that defendant's filing of the criminal complaint was "actuated by malice" and the report that she gave to the police concerning the incident was not true. She also found that the criminal action initiated by defendant's complaint terminated in plaintiff's favor. Awarding damages, the judge stated:

Accordingly, the court is granting judgment as follows: $1,200 for lost wages.

I have calculated that at the rate of about $1,000 a week. The plaintiff is self-employed. I'm giving him about two weeks or so vacation. $1,000 a week is about $200 a day. The plaintiff testified he missed six days from work. That's $1,200. $3,500 that the plaintiff had to pay the lawyer. $530 that he had to post for bail. An additional $6,000 for pain and damage -- pain and suffering at the rate of $200 a day for every day that the plaintiff was incarcerated when he should not have been.

On appeal, defendant asserts that the judge erred in finding her liable under the theory of malicious prosecution because plaintiff's complaint, which sounded in false imprisonment, was insufficient to place defendant on notice that the claim was in actuality one of malicious prosecution. Defendant also argues that the judge erred in awarding damages because plaintiff failed to present documentary evidence of his legal expenses and wage loss. She also claims that he was not entitled to damages for the money he posted for bail because he was entitled to reimbursement after the charges were dismissed. Finally, defendant asserts that the judge erred in awarding damages for pain and suffering because plaintiff failed to establish that he suffered from emotional distress.

We first address defendant's claim regarding liability, namely that plaintiff's failure to specifically plea malicious prosecution in his pro se special civil complaint precluded the judge from entering judgment on that theory. The objective of the Special Civil Part is to provide "a forum for pro se litigants that is quick, procedurally simple and relatively inexpensive." Schumy v. Cremer, 159 N.J. Super. 514, 516 (Cty. Ct. 1978). R. 6:3-1 provides that the provisions of R. 4:9 apply in the Special Civil Part.*fn5 Moreover R. 4:42-6*fn6 is also applicable in Special Civil cases. See Fanarjian v. Moskowitz, 237 N.J. Super. 395, 399-400 (App. Div. 1989). The trial judge had inherent authority to conform the judgment to the facts established at trial. Although malicious prosecution was not specifically pled as a separate legal theory, defendant had ample opportunity to respond to plaintiff's factual allegations. Indeed, she responded by claiming that plaintiff threatened her as she initially reported to the authorities. Her version was not deemed credible by the judge. We are satisfied that each pro se party was provided with a full and fair opportunity to state their case. No one was precluded from offering evidence.

We come to a slightly different conclusion regarding damages. Respecting lost wages, plaintiff testified that he actually missed six days of work because of his arrest and incarceration. Contrary to defendant's contentions, plaintiff was competent to testify concerning the number of days of work he missed and the extent of his yearly self-employment earnings. See N.J.R.E. 602; Phillips v. Gelpke, 190 N.J. 580, 589-90 (2007). Moreover, defendant was competent to testify as to the expenses incurred by him for attorney's fees. We are satisfied that the judge did not err in assessing damages for lost wages or counsel fees.

Relying on several cases dealing with recovery for negligent infliction of emotional distress, see Portee v. Jaffee, 84 N.J. 88, 101 (1980), defendant asserts that plaintiff's proofs failed to establish the fourth element of severe emotional distress. To be sure, a cause of action . . . for the negligent infliction of emotional distress requires proof of the following elements: (1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene . . .; and (4) resulting severe emotional distress. [Ibid.]

Plaintiff did not assert a Portee claim. Instead, his pain and suffering damage award was based on the mental stress and inconvenience sustained by him during his three days of confinement in jail, not on a cause of action of negligent infliction of emotional distress.

Plaintiff described his subjective symptoms of depression, stress, and anxiety as well as the inconvenience suffered by him while in jail, specifically his inability to sleep and eat. See Ayers v. Jackson, 106 N.J. 557, 576 (1987). Although the judge correctly found that plaintiff suffered pain and suffering based upon his testimony, she miscalculated the total pain and suffering damages. The judge assessed plaintiff's pain and suffering damages at what we consider a reasonable rate of $200 per day of incarceration. However, in doing so, she calculated total pain and suffering damages to equal $6000. Plaintiff spent only three days in jail. Thus, total pain and suffering damages should have been assessed at $600.

Defendant correctly points out that plaintiff was entitled to reimbursement of the ten percent cash bail posted by him for bail upon dismissal of the charges. See R. 3:26-4(g).

We affirm the judgment insofar as the award for counsel fees ($3500) and lost wages ($1200), reverse the judgment of $530 for the ten percent cash bail payment, and remand for correction of the pain and suffering judgment to reflect a total of $600. The total judgment should thus reflect damages of $5300 rather than the $11,230 entered on June 15, 2006.

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